Cumulative error in court-martial trials — Court-Martial Trial Practice Blog

As military defense counsel, we at Cave & Freeburg, LLP, will review the record of the court-martial trial for factual and legal errors to be raised on appeal. One of the legal doctrines we consider is what’s known as cumulative error–a lot of mistakes by the judge, the prosecutor, and/or the defense counsel. If we are your appellate military defense counsel, we will advocate for the most serious errors that may result in your charges getting dismissed or getting you a new trial. We also consider asking for dismissal based on cumulative error.

Cumulative Error Doctrine in Appellate Law

I. Definition and Purpose

The cumulative error doctrine is a prejudice-based test that evaluates whether multiple errors at trial, when considered collectively, undermined the fairness of the proceedings. It applies when individual errors, though insufficient alone to warrant reversal, cumulatively deprived the accused of a fair trial.

In United States v. Pope, 69 M.J. 328 (C.A.A.F. 2011), the C.A.A.F. explicitly adopted this approach, stating that appellate courts should assess the “cumulative effect of all plain errors and preserved errors.” The doctrine serves to protect the integrity of the judicial process by ensuring that multiple small errors do not aggregate into substantial injustice.

Under United States v. Banks, 36 M.J. 150, 170-71 (C.M.A. 1992), the doctrine requires appellate courts to consider if “a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding.” This retrospective analysis focuses on the entire trial process, ensuring that errors—whether procedural, evidentiary, or instructional—are not overlooked merely because they seem minor in isolation.

II. Application in the Armed Forces Court of Appeals

The Court of Appeals for the Armed Forces (C.A.A.F.) applies the cumulative error doctrine post-trial, meaning it does not apply in pretrial proceedings. This principle was reaffirmed in the recent case language provided, where the court stated:

“The cumulative error doctrine is a prejudice test that looks retrospectively at a trial’s execution and results to assess the cumulative effect of all plain errors and preserved errors.”

Thus, cumulative error analysis is limited to appellate review and does not justify pretrial dismissals, as prejudice can only be determined after the trial has concluded.

In United States v. Gore, 60 M.J. 178 (C.A.A.F. 2004), the court held that dismissal is a drastic remedy and should be used only when no other alternative can cure the prejudice. The case emphasized that errors should be addressed through less severe remedies when possible. The C.A.A.F. has consistently discouraged dismissal with prejudice unless it is the only way to ensure a fair trial.

III. Analysis of the Recent Case Language

The provided case discusses how a military judge misapplied the cumulative error doctrine in the pretrial context by dismissing Charge II with prejudice. The C.A.A.F. ruled that this was an abuse of discretion for two primary reasons:

Failure to Identify Prejudicial Taint from the First Court-Martial:
- The military judge did not establish how the errors from the initial court-martial affected the current proceedings.
- Corrective actions (disqualifying the trial counsel and convening authority) had already mitigated the initial issues.
Less Drastic Remedies Were Available and Effective:
- The judge remedied the interference with the accused’s right to counsel by:
  - Appointing the requested counsel,
  - Resetting deadlines, and
  - Allowing supplemental pleadings.
- Since these actions sufficiently addressed the concerns, dismissal with prejudice was unnecessary.

This ruling reinforces the C.A.A.F.’s precedent that cumulative error analysis is retrospective and should not be used to justify pretrial dismissals unless the errors are irreparable.

IV. Conclusion

The cumulative error doctrine is a narrowly applied appellate principle used to determine whether multiple errors denied the accused a fair trial. The C.A.A.F. has repeatedly cautioned against its misuse in pretrial settings, as seen in the recent case. Instead, appellate courts must evaluate whether corrective measures adequately cured any prejudice before resorting to dismissal.

This doctrine ensures that trials are fair, but it does not serve as a pretrial remedy to dismiss charges prematurely. The C.A.A.F.’s approach remains consistent: dismissal is a last resort, only appropriate when no other remedy can preserve the fairness of the proceedings.

We are admitted to practice in the Air Force Court of Criminal Appeals (AFCCA), Army Court of Criminal Appeals (ACCA), Coast Guard Court of Criminal Appeals (CGCCA), and the Navy-Marine Corps Court of Criminal Appeals (NMCCA); as well as the Court of Appeals for the Armed Forces.

If you want us to do a case review, call or email us to make arrangements.